Fair Use Victories on the DMCA

Another victory for common sense and fair use came today from the Librarian of Congress, acting on recommendations from Copyright Office. The latest ruling [2] on exemptions to the Digital Millennium Copyright Act greatly expands access to encrypted, copyrighted works for fair use purposes.

Now, college teachers of all kinds, university film and media studies students, documentary filmmakers, and makers of noncommercial videos can all break encryption on commercial DVDs to quote motion pictures, for the purpose of criticism and comment.  Breaking encryption is the kind of thing you do with HandBrake and other software programs that let you copy material that the provider has digitally “locked.” The DMCA makes illegal most breaking of encryption for any purpose; however, every three years the Copyright Office can grant exemptions for petitioners who suffer adverse effects from the law.

In May 2009, college teachers, documentary filmmakers, media literacy teachers, librarians and remixers, especially makers of video fan fiction or “vidders,”petitioned the Copyright Office for the right to quote copyrighted and encrypted film in their own work. (At right, Gordon Quinn and Jim Morrisette of Kartemquin Films show off the slideshow they presented at the Library of Congress.) They petitioned because they understood the value of fair use, and many of them got that understanding by creating, within their communities of practice, codes of best practices in fair use [3]. The Center was instrumental in shaping  these codes, along with the Washington College of Law’s Program on Information Justice and Intellectual Property [4] (PIJIP). For Pat Aufderheide’s report on their presentations, go here [5].

The communities represented in these petitions were supported by a network of fair use advocates, including not only the Center and PIJIP but the Washington College of Law’s intellectual property clinic, University of Southern California’s intellectual property clinic students and director Jack Lerner, Los Angeles lawyer Michael Donaldson, the Electronic Frontier Foundation and the nation's libraries (represented by the Library Copyright Alliance and the Music Library Association).

The rules [2] are broader than many expected, and the restrictions conform nicely to the parameters of fair use. The exemption for use of motion pictures on DVD—which lumps together doc filmmakers, college teachers and film/media studies students and noncommercial video creators such as remixers--is limited only to criticism and commentary, not to all potential fair uses, but that category is enormously broad, including even remixes with a critical intent. The excerpt must be “relatively short,” but the Librarian chose not to define the phrase, leaving it up to the user. A new work must be created (a "transformative" act). The maker must have a reason why an inferior quality (such as one shot off a screen or from a VHS) is not good enough.

The rule only applies to DVDs, not to all audio-visual material--for instance to video games or slideshows or Blu-Ray. 

As well, the Copyright Office granted the Electronic Frontier Foundation’s fair-use argument for making “jailbreaking” a smartphone (breaking your iPhone’s encryption to install non-Apple-approved software) legal.

Media literacy teachers, said the Copyright Office, were not included in the class of people who can quote movies on DVD because the Copyright Office did not believe that they really need high-quality versions to do their work.  However, media literacy teachers and their students frequently produce non-commercial work, and such work will be covered under the granted exemption.

In the 2012 hearings, expect to see some of these petitioners return, either to increase the range of materials they can use or with more evidence that they need to break encryption to do their work. And don’t be surprised if you see even more petitioners, who have come to realize the value of their fair use rights.